Who will bell the cat? Transfer of investigation in the Karur stampede case

On September 27 in Karur, Tamil Nadu, 41 persons including 9 children tragically passed away in a stampede during a political campaign by actor-turned-politician Vijay, leader of the Tamizhaga Vetri Kazhagam (TVK).

After the incident, the Karur Police registered an FIR on September 27 against TVK functionaries. Thereafter, PILs were filed before the Madurai Bench of the High Court to transfer the investigation to the Central Bureau of Investigation (CBI), which were dismissed by the Division Bench (DB), relying upon the Constitution Bench decision of the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights.

The Madurai DB held that CBI investigation cannot be ordered in a routine manner and that there is no material to doubt the police investigation, which was at a nascent stage. Another writ petition was filed before the Principal Bench at Madras praying for a direction to frame guidelines for roadshows by political parties. On October 3, a single judge appointed a Special Investigation Team (SIT) to enquire into the Karur incident.

All these three orders of the High Court were assailed before the Supreme Court of India in a batch of Special Leave Petitions (SLPs). Two further writ petitions were filed by family members of victims seeking transfer of the probe to CBI. In these cases, the Supreme Court on October 13 passed an interim order transferring the investigation from the SIT to the CBI, monitored by a retired judge of the Supreme Court – Justice Ajay Rastogi.

What is surprising in this case is the alacrity with which the Supreme Court has ordered CBI investigation, that too through an interim order. It appears that the Court was not at all conscious of the drastic nature of the power to rip out investigations from a State and hand it over to a Union agency.

Going back in time, the Government of India Act, 1935 contained a legislative list in Schedule VII that apportioned legislative competence between the federal and provincial legislatures. Entry 39 of List – I of the legislative list permitted the federal government to extend powers and jurisdiction of police force belonging to any part of ‘British India’ to any other province only with the consent of the Governor General of that province.

The CBI was originally formed in 1941 - when India was under a state of emergency due to World War II - to investigate bribery and corruption within the War and Supply Department of the government. During this emergency, in exercise of his power to promulgate ordinances for peace and good governance under Section 72 of Schedule IX of the 1935 Act, the Governor General promulgated the Special Police Establishment (War Department) Ordinance, 1943. Under Section 2(4) of this Act, the Special Police Establishment could exercise power throughout the territory of India.

After the end of World War II, on September 25, 1946, the Governor General promulgated another Ordinance which constituted a “special police force” under the Chief Commissioner of the Delhi province to investigate matters concerning the federal government alone. This police force could enter the provinces only with the consent of the concerned Governor General. Thereafter, the Delhi Police Special Establishment (DPSE) Act, 1946 was enacted and contained the same restriction that the special force cannot operate within the provinces without the consent of the concerned Governor General.

After the Constitution came into force on January 26, 1950, the Union government adopted the DPSE Act, 1946 within the territory of India, with necessary modifications through Adaptation of Laws Order, 1950.

The DPSE Act, 1946 would be void for violation of Entries 1 and 2 of List II, Schedule VII if not for Section 6, which requires the consent of the State for CBI exercise jurisdiction within that State. Tamil Nadu had granted a ‘general consent’ to operate, but withdrew the same in 2023 owing to the weaponisation of CBI for political ends. Therefore, the CBI has no power within Tamil Nadu.

However, as an exception to Section 6, the Supreme Court in the case of State of West Bengal held that the consent of the state government is not required when the Supreme Court or High Courts transfers an investigation to the CBI.

Now this was quite a paradigm shift in Union-State relations because even during the British Raj, a police force of the Union could not enter the Provinces without the Governor General’s consent. Now, through judge-made law, the Supreme Court has empowered itself to permit a Central police agency to conduct criminal investigation within states, in derogation of the constitutional separation of powers.

The Supreme Court justified this power by restricting its use as follows:

• The power to transfer investigation must be used sparingly and cautiously; 

• Transfer should not be made merely because some party has made allegations against the local police; 

• Must be used where it is necessary to provide credibility and instil confidence in investigations;

• Where the incident may have national and international ramifications;

• Where such an order may be necessary for doing complete justice and enforcing the fundamental rights.

In the present case, the Supreme Court recorded three reasons for its interim order: 

• There are political undertones in this case;

• Comments have been made in the media by top officers of the police department that may create doubt on impartiality and fair investigation;

• Faith and trust of the general public.

The first reason that there are political undertones is squarely against the ratio laid down in State of West Bengal.

Courts have to be conscious that in a federal setup, there will be different political combinations or coalition governments at the Union and the State level. When the parties in power at the Centre and State are different, naturally there will be an attempt to transfer some investigations to the former by levelling political allegations. Allegations of corruptions are loosely made by political rivals without basis all the time. If mere political undertones or overtones are enough to transfer any case to the CBI, the political combination containing the party ruling at the Centre will have an unfair advantage over regional parties.

This will certainly lead to gross abuse of Central agencies by the Union government. The Court must guard itself against being used in a political game by the party in power at the Centre to transfer investigations from the states to Union agencies.

The second and third reasons given by the Supreme Court also fall far below the standards required to transfer investigations.

A mere press conference by top officials does not ipso facto impact an investigation. The Court can give such a finding only after appreciation of the investigation conducted so far and not at the interim stage.

It is trite in law that the final relief sought for should not be given at the interim stage.  When the Supreme Court has not given a finding in its interim order that the investigation by the State Police was defective or fallacious and has not even perused the case diary of the investigation officer, it ought not to have transferred the investigation based on conjectures and surmises.

Another curious aspect of the order of the Supreme Court is why it chose to appoint a retired judge as a “supervisory committee” to monitor the CBI probe. If the reason for transfer to the CBI is because the agency is impartial, then the appointment of a supervisory committee is contradictory. There is no statutory backing for such a supervisory committee in the BNSS, 2023 or DPSE Act, 1946. Empowering the committee to direct the investigation is, therefore, a direction in derogation of the statutes governing criminal investigation and must not be done in a routine and casual manner without reasons.

The Supreme Court has permitted the Supervisory Committee to choose two non-native IPS officers from Tamil Nadu cadre. The Court has offered no reasons for such a direction. This dichotomy between a TN native officer and non-native officer suggests that the latter are somehow more neutral and impartial. It is an affront to the Tamil Nadu Police, Indian Police Service and the idea of having a constitutional all-India service under Article 312 of the Constitution of India.

This is an unprecedented, divisive and dangerous path to tread.

Article 15 of the Constitution prohibits discrimination on the basis of race or language. The Court must not look at civil servants as native or non-natives of a State, for all IPS officers owe allegiance to the Constitution of India. Courts may choose a particular officer, but the criteria has to be merit and ability, not nativity. Such orders discriminating between native officers and non-native officers of an all-India service is ex facie unconstitutional. 

In High Court Bar Association, Allahabad v. State of UP & Ors, a Constitution Bench of the Supreme Court reiterated that a High Court is constitutionally independent of the Supreme Court of India and is not subordinate to it. In exercise of its powers under Article 136, the Supreme Court may set aside any order of the High Court, but it cannot call for explanation from the judges or registrars as if it exercises power of superintendence. The Supreme Court must decide appeals from High Courts only on the anvil of law, based on the impugned judgement, pleadings and documents on record and not through “explanations” from the High Court. Such orders undermine the authority and independence of the High Courts and must be avoided.

As I was penning this article, I saw that the Supreme Court had pronounced its judgement in Legislative Council UP Lucknow & Ors v. Sushil Kumar & Ors. In this case, there were allegations of corruption in the recruitment of candidates in the UP Legislative Council Secretariat, and the High Court had transferred the investigation to the CBI. The Supreme Court had set aside the order of the High Court, holding that CBI inquiry should not be ordered by courts in a routine manner and the power to direct the CBI to investigate must be exercised sparingly, cautiously and only in exceptional situations where it is satisfied that the material placed prima facie necessitates a CBI investigation. The Court held that CBI investigation should not be directed merely because a party casts certain aspersions or harbors a subjective lack of confidence in the State Police.

There can be no better critique of the Karur interim order than the judgment in the UP case, for the Karur order has not satisfied any of the tests laid down by the same judge in the UP case.

I do not say that constitutional courts cannot transfer investigations from the State Police to the CBI. However, the courts must strictly follow the tests laid down in State of West Bengal.

The Court must test whether the police investigation is fallacious or done in a manner to subvert justice and demand substantial evidence of the same from the person seeking CBI investigation. Transferring an investigation at the interim stage leads to a precarious situation where all the evidence collected by the CBI will be rendered nugatory if the writ petition is ultimately dismissed.

This is a case where the Supreme Court should have been more circumspect in exercising its power to transfer the investigation from the State to a Central agency and conscious that such orders effectively cause violence to the constitutional separation of powers.

Richardson Wilson is an advocate practicing before several High Courts and the Supreme Court.